NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPEALLTE JURISDICTION
CIVIL APPEAL NO. OF 2008
[Arising out of SLP (C) No. 5753 OF 2003]
State of Punjab & Others .. Appellants
Versus
Constable Avtar Singh (dead)
through LRs. .. Respondents
JUDGMENT
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal arises from the judgment dated September
16, 2002 delivered by the High Court of Punjab and Haryana
at Chandigarh in RSA No.556/2001.
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3. Brief facts which are necessary to dispose of this appeal
are recapitulated as under:-
4. The respondent was appointed on probation for a period
of three years in the Punjab Police in 1989. In July, 1992, he
was sent to Barnala, Punjab to attend a departmental enquiry.
The Deputy Superintendent of Police, Barnala relieved the
respondent on 1.8.1992 with the direction to report at his
place of posting, but the respondent did not report at his place
of posting, therefore, he was marked absent from 1.8.1992 to
19.9.1992. The respondent joined the duty on 20.9.1992 after
one month and two days and again remained absent from
7.10.1992. The respondent remained absent for a long period
without any permission from the senior officers which is a
serious act of misconduct according to the police discipline
rules. In these circumstances, the respondent was dismissed
from service w.e.f. 1.11.1992 under rule 12.21 of the Punjab
Police Rules, 1934.
5. Rule 12.21 reads as under:
“A Constable who is found unlikely to prove an
efficient police officer may be discharged by the
3Superintendent at any time within three years of
enrolment. There shall be no appeal against an
order of discharge under this Rule.”
6. The said order of dismissal was challenged by the
respondent by filing a civil suit for declaration that the order
of dismissal is illegal, ultra vires, unconstitutional, null and
void and against the principle of natural justice. The suit of
the plaintiff /respondent was decreed.
7. The State of Punjab aggrieved by the said judgment and
decree preferred an appeal. The said appeal was also
dismissed. According to the appellants, the appeal was
dismissed without considering the Punjab Police Rule 12.21.
Under the said rule, an employee of disciplined forces can be
removed from services any time within three years of the
enrolment. The Appellate Court held that an opportunity has
to be afforded to the delinquent official because the dismissal
from the service carries a serious stigma.
8. The State of Punjab preferred a regular second appeal
contending that the question of absence from duty without
prior permission of the Senior Officer is an act of grave
misconduct. The Punjab Police Rules, 1934 permit that an
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inefficient constable may be discharged by the Superintendent
of Police at any time within three years of the enrolment. The
High Court of Punjab and Haryana dismissed the regular
second appeal on the ground that the impugned order of
discharge was stigmatic and respondent was not given a fair
opportunity and secondly absence from duty could not be
viewed as culpable as in the same order the Senior
Superintendent of Police, (for short `SSP’), Barnala has
condoned respondent’s absence from the duty. The State of
Punjab aggrieved by the judgment of the High Court has
preferred the present appeal by special leave under Article 136
of the Constitution.
9. The learned counsel appearing for the State of Punjab
submitted that the controversy involved in this case is no
longer res integra. He placed reliance on a three-Judge bench
decision of this court in State of Punjab & Others v.
Sukhwinder Singh (2005) 5 SCC 569. The facts of this case
are almost similar to the facts of the case in hand. In the said
case, the respondent was appointed as a police constable.
Before completion of the probation period of three years, he
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absented from duty without seeking permission for 22 days.
The SSP discharged him from service with immediate effect by
invoking rule 12.21 of the Punjab Police Rules, 1934. The
respondent challenged the order of discharge before the civil
court. The civil court held that order is null and void and the
appellate court also upheld that decision. The High Court
dismissed the second appeal and held that absence from duty
was a misconduct and imposition of the punishment of
discharge on the respondent without holding a formal inquiry
as envisaged under Rule 16.24 (ix) of the Rules vitiated the
order of discharge. The State of Punjab aggrieved by the order
of the High Court filed an appeal by special leave before this
court.
10. The State of Punjab contended before this court that the
respondent was only a probationer in terms of the Rules. That
the impugned order of discharge was neither stigmatic nor did
it affect him with any evil consequences. The impugned order
was passed in exercise of the power conferred by the Rules.
That since no disciplinary action had been taken against the
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respondent there was no necessity of holding any formal
enquiry.
11. On the other hand, the respondent submitted that the
impugned order of discharge, although apparently innocuous,
had in fact been passed on the ground of misconduct viz. the
continued absence from duty and therefore amounted to an
order of dismissal. That, therefore, it was obligatory upon the
appointing authority to have held a formal departmental
enquiry. This court held as under:
“20. In the present case neither any formal
departmental inquiry nor any preliminary fact-
finding inquiry had been held and a simple order of
discharge had been passed. The High Court has
built an edifice on the basis of a statement made in
the written statement that the respondent was a
habitual absentee during his short period of service
and has concluded therefrom that it was his
absence from duty that weighed in the mind of the
Senior Superintendent of Police as absence from
duty is a misconduct. The High Court has further
gone on to hold that there is direct nexus between
the order of discharge of the respondent from
service and his absence from duty and, therefore,
the order discharging him from service will be
viewed as punitive in nature calling for a regular
inquiry under Rule 16.24 of the Rules. We are of the
opinion that the High Court has gone completely
wrong in drawing the inference that the order of
discharge dated 16-3-1990 was, in fact, based upon
misconduct and was, therefore, punitive in nature,
which should have been preceded by a regular
departmental inquiry. There cannot be any doubt
that the respondent was on probation having been
appointed about eight months back. As observed in
Ajit Singh v. State of Punjab (1983) 2 SCC 217 the
period of probation gives time and opportunity to
7the employer to watch the work, ability, efficiency,
sincerity and competence of the servant and if he is
found not suitable for the post, the master reserves
a right to dispense with his service without
anything more during or at the end of the
prescribed period, which is styled as period of
probation. The mere holding of preliminary inquiry
where explanation is called from an employee would
not make an otherwise innocuous order of
discharge or termination of service punitive in
nature. Therefore, the High Court was clearly in
error in holding that the respondent’s absence from
duty was the foundation of the order, which
necessitated an inquiry as envisaged under Rule
16.24(ix) of the Rules.”
This court set aside the impugned judgment of the High
Court. The ratio of this case is fully applicable to the facts of
the case in hand. In the aforesaid case, the court dealt with
the case of police constable who was dismissed from the
service without holding the enquiry and by invoking Rule
12.21 of the Punjab Police Rules, 1934 and the charge was
absence of 22 days from the duty.
12. In this case, the respondent was also a probationer
police constable. He was also discharged from the service
because he remained absent from 1.8.1992 to 19.9.1992. He
joined duty on 20.9.1992 after total absence of a period of one
month and two days and again he remained absence since
7.10.1992.
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13. We have heard learned counsel for the parties. We are in
total agreement with the submission of the learned counsel for
the State of Punjab that the controversy involved in this case
is no longer res integra. Learned counsel appearing for the
respondent had drawn our attention to a two-Judge bench
decision of this court in Prithipal Singh v. State of Punjab
& Others (2002) 10 SCC 133. The court held that once there
is stigma, the principle is well settled, an opportunity has to
be given before passing any order. Even where an order of
discharge looks innocuous, but on a close scrutiny, by looking
behind the curtain if any material exists of misconduct and
which is the foundation of passing of the order of discharge, or
such could be reasonably inferred, then it leaves no room for
doubt that any consequential order, even of discharge, would
be construed as stigmatic. The decision in Sukhwinder
Singh (supra) was given by a three-Judge bench and in view
of that decision in 2005, there is no scope for this court to
take a different view. We are squarely bound by the said
decision.
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14. Consequently, the appeal filed by the State of Punjab is
allowed, but in the facts and circumstances of this case, we
direct the parties to bear their own costs.
………………………….J.
(Tarun Chatterjee)
………………………….J.
(Dalveer Bhandari)
New Delhi;
May 12, 2008.